Bell v. Atlantic Coast Line R. Co.

• Decision Date: 05 April 1930
• Docket Number: 12882.
• Citation: Bell v. Atlantic Coast Line R. Co., 155 S.E. 397, 158 S.C. 168 (S.C. 1930)
• Parties: BELL v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

155 S.E. 397

158 S.C. 168

BELL v. ATLANTIC COAST LINE R. CO. et al.

No. 12882.

Supreme Court of South Carolina

April 5, 1930

Appeal from Common Pleas Circuit Court of Charleston County; W. H Townsend, Judge.

Action by Lurline J. Bell, as administratrix of the estate of John M. Bell, deceased, against the Atlantic Coast Line Railroad Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Hyde Mann & Figg, of Charleston, for appellants.

T. P Stoney, A. R. McGowan, and J. D. E. Meyer, all of Charleston for respondent.

WATTS C.J.

This is an action for damages in the amount of $95,000 brought in the court of common pleas for Charleston county, S. C., by the plaintiff, as administratrix of the estate of John M. Bell, deceased, for the benefit of herself, as the widow of the said John M. Bell. The action is against the defendants, Atlantic Coast Line Railroad Company, Peter Friday, and Herman F. Cardwell. The answer of defendants alleged that at the time of the injuries to and the death of the plaintiff's intestate both the plaintiff's intestate and the defendants were engaged in interstate commerce, and that the action should be and is under the Federal Employers' Liability Act, as amended (45 USCA § § 51-59).

At the trial, the testimony showed that the deceased and the defendants were engaged in interstate commerce at the time of the accident, and it was admitted by both plaintiff and defendants that the action came within and was tried under the Federal Employers' Liability Act, as aforesaid; and the trial judge so charged the jury.

The case was tried at the February, 1928, term of the court of common pleas for Charleston county, and resulted in a verdict for the plaintiff against the defendants in the amount of $5,000 as aforesaid, which verdict was rendered on the 25th day of February, 1928. Due and timely notice of intention to appeal was served by the defendants, and thereafter within the time allowed by law this transcript of record and exceptions was prepared and served by the defendants-appellants.

While the appellants' exceptions are six in number, they by their brief submit for the consideration of this court the single question as to whether the defendant was derelict in any duty that it owed to the plaintiff's intestate and guilty of any negligence.

In considering this question it should be remembered that cases tried under the Federal Employers' Liability Act are to be determined with respect to the form of action, sufficiency of pleading, and rules of evidence by the law of the state where the cause is tried. See Dutton v. Railroad Company, 104 S.C. 31, 88 S.E. 263; McNiel v. Holbrook, 12 Pet. 89, 9 L.Ed. 1011; Central Vt. R. R. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252. See Randall v. Railroad Company. 109 U.S. 478, 3 S.Ct. 322, 324; 27 L.Ed. 1003, where it said that the rule that prevails in the Federal Courts is as follows: "It is the settled law of this court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. *** And it has recently been decided by the house of lords, upon careful consideration of the previous cases in England, that it is for the judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred."

In the Mulligan Case it was held: "The state rules as to sufficiency of evidence to prove negligence apply in actions under the federal Employers' Liability Act, *** as that act contains no specific provision as to quantity or method of proof of negligence." Mulligan v. Atlantic Coast Line R. Co., 104 S.C. 173, 88 S.E. 445, judgment affirmed (1917) Atlantic Coast Line R. Co. v. Mulligan, 242 U.S. 620, 37 S.Ct. 241, 61 L.Ed. 532.

And likewise in the Dutton Case: "The rule of the state courts as to direction of a verdict applies to an action in them under the federal Employers' Liability Act." Dutton v. Atlantic Coast Line R. Co., 104 S.C. 16, 88 S.E. 263, judgment affirmed. Atlantic Coast Line R. Co. v. Dutton, 245 U.S. 637, 38 S.Ct. 191, 62 L.Ed. 525.

The next question, therefore, is: What is the law in this state relative to the granting of a nonsuit or the direction of a verdict, and, as was stated in Thornton v. Seaboard Airline Ry., 98 S.C. 348, 82 S.E. 433, 434, Chief Justice Watts, speaking for this court, stated: "It is so well settled that, if there is any competent testimony to go to the jury, a nonsuit cannot be granted or verdict directed that quotation of authority is unnecessary," and, "'whenever there is any competent testimony it is the duty of the judge to submit the case to the jury.' Buist v. Mercantile Co., 73 S.C. 48, 52 S.E. 789." Cain v. R. R. Co., 74 S.C. 89, 54 S.E. 244.

We, therefore, see that under the Randall v. R. R. Company Case, supra, it is for the judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred, and it is for the jury to say whether, from those facts when submitted to them, negligence ought to be inferred. And, from the Thornton v. Seaboard Airline Ry. Case, that: "Whenever there is any competent testimony it is the duty of the judge to submit the case to the jury."

We next, therefore, inquire: Was there actionable negligence on the part of the defendants in this case? What duty would the defendant owe the plaintiff under the circumstances?

In order to determine these questions it is necessary that we first ascertain the nature and extent of the duty imposed by the law upon the employer in providing for the safety of its employees.

This duty has been often stated and clearly defined both by this court and the United States Courts: "The employer, whether a natural person or a corporate body, is under obligation not to expose the employee in conducting the employer's business to perils or hazards against which he may be guarded by proper diligence on the part of the employer. Hough v. Railway Co., 100 U.S. 213, 217, 25 L.Ed. 612."

In Taylor v. Winnsboro Mills, 146 S.C. 28, at page 36, 143 S.E. 474, 477, it is said by the Supreme Court of South Carolina: "It is too well settled in this state to require the quotation of authorities to show that a master must exercise care to furnish his servant a reasonably safe place to work; however, the following cases sustain this principle: McKain v. Camden Co., 89 S.C. 378, 71 S.E. 949; Thomason v. Manufacturing Co., 95 S.C. 239, 78 S.E. 895; Mann, Adm'r, v. Railway, 138 S.C. 251, 136 S.E. 234."

In Wilson v. A. C. L. Railway Company, 134 S.C. 31, at page 33, 131 S.E. 777, the court said: "The master is chargeable with the duty of exercising reasonable care in furnishing the servant with a safe place in which to work; he is not a guarantor of such safety. Seaboard Air Line Railway Company v. Horton, 34 S.Ct. 635, 232 U.S. 492. 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. The proof of an injury does not raise the presumption of negligence on the part of the master. Holmes v. Davis, 119 S.E. 249, 126 S.C. 231. A motion for a directed verdict in such cases should not be granted except where the court can say that no other reasonable inference can be drawn from the evidence than that the master has discharged his duty to the servant."

The care required of the employer is that of reasonable diligence; "and reasonable diligence implies, as between the employer and employee, such watchfulness, caution, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful, prudent officers ought to exercise." Wabash R. Co. v. McDaniels, 107 U.S. 454, 460, 2 S.Ct. 932, 938, 27 L.Ed. 605.

In general terms, the degree of care required of an employer in protecting his employees from injury is the adoption of all reasonable means and precautions to provide for the safety of his employees while they are engaged in his employment, and this degree of care is to be measured by the dangers to be apprehended or avoided.

"It was the duty of the defendant to use reasonable diligence in furnishing a safe place for its employees to work in, and whatever risk the employee assumed in carrying on the defendant's business did not exempt the defendant from that duty." Baltimore & Potomac R. Co. v. Mackey, 157 U.S. 72, 87, 15 S.Ct. 491, 39 L.Ed. 624; Union Pacific Ry. Co. v. O'Brien, 161 U.S. 451, 457, 16 S.Ct. 618, 40 L.Ed. 766; Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 191 U.S. 64, 67, 24 S.Ct. 24, 48 L.Ed. 96; Sante Fé Pacific R. R. Co. v. Holmes, 202 U.S. 438, 441, 26 S.Ct. 676, 50 L.Ed. 1094; Kreigh v. Westinghouse & Co., 214 U.S. 249, 255, 29 S.Ct. 619, 53 L.Ed. 984.

So, now, therefore, bearing in mind the principle that, "if there is any competent testimony to go to the jury, a nonsuit cannot be granted or verdict directed," and "whenever there is any competent testimony it is the duty of the judge to submit the case to the jury." Thornton v. Seaboard Airline Ry., supra.

There is no dispute that the deceased was killed in the yards at Charleston by engine No. 263, which said engine was backing into the "hostler's'D' track situated between the "pocket" track and the deceased's automobile.

The testimony shows that the engineer was backing into the hostler's track at a place where it was the known custom for employees to pass and repass.

The testimony...